It was April 1976. Indira Gandhi, the then Prime
Minister of India, had imposed national emergency. In the midst of that, the
Supreme Court was tasked to decide whether a citizen could
challenge a detention order based on the fundamental rights as recognized the
by Constitution. While answering in negative – and thus asserting the
suspension of fundamental rights during the continuance of emergency, the
majority held that:

In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.

It is 2020, and the entire world is battling COVID-19.
Unlike other countries like New Zealand, the United States and Singapore, the Indian response to the pandemic has largely been
limited to executive decrees issued
by the union government under the Disaster Management Act, 2005 and the
state governments under the Epidemic Act, 1897. The powers under these two
statutes are widely worded and are effectively in the form an executive carte blanche. Given
that the legislative bodies, both at the federal and the state level, are not
functioning, the only check on the extensive powers of the executive government
is judicial oversight.

Acts and Omissions

During the COVID-19 crisis, the Supreme Court’s
approach towards writ petitions seeking relief against violation of fundamental
right to life, livelihood and public health has been glaringly similar to its
1976 national emergency avatar. It needs to be recognized that the union government’s
executive decree to impose the nation-wide lockdown, which has been continuing
for over fifty days now, has caused widespread unemployment and distress in the
country. Due to the shutdown of almost all economic activities, over 122 million Indian citizens lost their jobs. The lack of
adequate financial assistance and in the absence of transportation services, thousands
of migrants were forced to walk long distances back home. In the wake of this humanitarian crisis, the government’s lack of effective
relief has undeniably breached constitutional rights and violated its public
duties towards citizens.

What is more disconcerting than the executive’s apathy
is the Supreme Court’s refusal to meaningfully intervene in
fulfilment of its constitutional duties. This is especially unfortunate because
the Court, in the past, has advanced the Indian constitutional jurisprudence to
a stage where the ‘constitutional goal of creating an egalitarian social order
by ensuring justice for the
underprivileged sections’ was ‘the moral and legal duty of the State’. It has also made remarkable
pronouncements for protection of socio-economic rights by interpreting them as
part of the fundamental right to life. This includes the right to food, health and livelihood which were undeniably violated by the executive action in this case.

However, the Supreme Court of today has back-stepped
from the jurisprudence developed in the immediate aftermath of the emergency era. It can be
perceived as uncritically accepting the submissions made by the government, without asking the necessary questions. In one instance, the
Court did not even question the government when it stated that there are no migrants walking back home, an assertion
made in March which still remains false. The action of the Supreme Court to take the words of
the government on face value had led to a situation where the migrants are
still walking back home.

In another instance, the Court dismissed a petition
seeking relief measures for the migrant workers, stating that ‘[l]et the state decide. Why should the Court
hear or decide?’ and ‘[h]ow can we stop them from walking’. The Court was
dismayed with the fact that the petition was totally based on newspaper
clippings. This judicial nonchalance at the grave violations of fundamental
rights completely turns to its head the foundations of the judicial
approachability and innovation where the Court took human suffering seriously.

The courts need to realize that it is the very life of
people which it at stake here. The constitutional mechanism has to function
robustly in order to uphold the emblematic promise that the ‘We the people’
give to ourselves the Constitution. The situation isn’t beyond comprehension. First, it must be understood that nobody
willingly chooses to walk hundred to kilometers under the scorching summer
heat. It is the failure of the state mechanism to arrange for adequate and safe
mode of transportation. A direction from the Supreme Court at the relevant time
could have saved many lives. It is the realization that the court’s abdication,
in the absence of representative institutions, can cost lives of the poor,
which is scarier than the factum of executive aggrandizement. What requires
from the courts in these situations is not any ‘audacious judgment’, as Vicente F. Benítez R. also pointed out previously on this
blog, but a decision reminiscent of basic human rights as envisaged in the
Indian Constitution.

While hearing another PIL seeking immediate payment of
wages to migrant workers, the Court asked if there is any requirement to make
the payments when the workers were being fed at the shelter homes. The total
insulation of the Court citing that the issue under consideration pertains to a
policy aspect – a domain reserved exclusively to the executive – fails to
appreciate the fact that at any policy decision of the government must be
constitutionally tailored and should provide for its obligations to ensure a
dignified life of its citizens. This is a clear divergence from the Supreme
Court’s judgement in
Municipal
Council, Ratlam v. Vardhichand, where the Court enforced the public duties by invoking
the government’s constitutional obligation to ensure human dignity and human
rights enshrined in Part III of the Constitution rejecting any excused based on
the lack of funds.

True that it is the executive which is best suited to
deal with a health emergency, but a complete abdication of power in favor of
the executive allows the latter to function with authoritarian instincts. In
the name of a health crisis and its presumed incapacity to intervene in policy
matters, the courts choose themselves to risk people’s confidence and its image
as an independent institution. This, we believe, must concern the courts more
than any future political backlash. We call it presumed incapacity because the
court might lack the state apparatus of money, material and men – as the Chief of Justice of India
noted – but it definitely holds significant constitutional authority to make
the government align its policies to the constitutional promises, at least on
the level of principles if not specifics. This shall, on one hand make the
courts rise to the demand to the time; and on the other, stand as a necessary
shield against the effects of executive aggrandizement.

Supreme
Court and Freedom of Press

In the same decision concerning the migrants, the Supreme Court gave a direction which in effectively affected the exercise of press freedom. The Court stated as follows:

A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.

Immediately thereafter, as one of India’s leading health journalist, Ms. Vidya Krishnan, has reported that this judgment has emboldened the executive and it has cut short its press conferences. The access to press briefings to has been limited to government-approved journalists with more limitations being placed on the manner of questioning the Government representatives. The same Supreme Court, though, had stated in past in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of Indiathat: ‘The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments’.

Quite similar to the emergency era, the Indian High Courts are leading march in the protection of fundamental rights and saving the grace of Indian constitutionalism. The Gujarat HC, the Andhra Pradesh HC, the Karnataka HC, the Kerala HC and the Madras HC have taken note of the plight of the migrant workers and issued a number of directions to the relevant governments. The Andhra Pradesh HC in particular noted that ‘[i]f at this stage, this Court does not react and pass these orders, this Court would be failing in its role as a protector and alleviator of the suffering.’ Similarly, the Madras HC noted multiple news reports highlighting the pain being borne by the migrants and went on to state that ‘[o]ne cannot control his/her tears after seeing the pathetic conditions of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy’.

Conclusion

In a recent article, Francesco Palermo noted that ‘emergency is not a friend of Constitutions’. The Constitutions
are made to prevail in the times of crisis as well as normalcy, however, ‘when critical situations occur the overall trends are always the same:
fundamental rights are limited and a centralization of power takes place’. This
is a dangerous situation. Any expansion of executive powers must not happen at
the cost of other two institutions, and especially the judiciary when the
legislative bodies are not functioning. Under the Indian Constitution, the
judiciary is designed to function as a necessary bulwark against transformation
of a liberal democracy into an illiberal one. It can effectively check that any
expansion of executive power – for instance, the centralization of the power –
remains limited to the needs of the time and that normal positions are
revisited once the crisis ends. A crisis must not lead to changes in the
existing constitutional structure beyond the needs of the time, otherwise, a
health crisis would not take time to convert itself into a constitutional
crisis. We conclude by extracting the words of the Supreme Court as a reminder
of what the Constitution demands of them;

[C]onstitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power. This Court, being the highest constitutional court, has the responsibility to monitor the preservation of constitutional morality as an incident of fostering conditions for human dignity and liberty to flourish.

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